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U.S. Department of State Announces Implementation of New Visa Waiver Program Law

On Jan. 21, 2016, the Department of State (“Department”) announced that it had begun the implementation of changes to the Visa Waiver Program (VWP), which were enacted as part of the Consolidated Appropriations Act, 2016. The Department reiterated that nationals of the 38 VWP countries who had traveled to Iran, Syria, Iraq, or Sudan after March 1, 2011, would no longer be eligible to use the VWP. We refer to these as travel restrictions. Furthermore, as provided by the new law, nationals of VWP countries who are also nationals of Iran, Syria, Iraq, or Sudan would also not be eligible to participate in the VWP. These are nationality restrictions. It is important to note that Canadian citizens, who are not required to obtain a visa for purposes of U.S. travel (and are not VWP participants), are not affected by the new laws.

In its announcement, the Department provided further clarification in regard to the new law’s implementation. As of Jan. 21, 2016, any individual who currently holds a valid Electronic System for Travel Authorization (ESTA) and who had indicated on the ESTA application that they held dual nationality with Iran, Syria, Iraq, or Sudan, will have their ESTAs revoked. We note that under the terms of the new VWP law, additional countries may be added to the current list.

According to the Department’s announcement, the Secretary of Homeland Security has authority to waive VWP restrictions, on a case-by-case basis, if doing so is deemed by the Secretary of Homeland Security to be in the law enforcement or national security interests of the United States. Note that the grounds for a waiver appear to relate only to the bar for travel or presence in one of the four specified countries after March 1, 2011. The State Department’s announcement specified five categories where a waiver may potentially be appropriate:

“Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty;

Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty;

Individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes;

Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and

Individuals who have traveled to Iraq for legitimate business-related purposes.”

Further, the Department noted that “whether ESTA applicants will receive a waiver will be determined on a case-by-case basis,” and that the Department would continue working to determine whether a waiver may be applicable in situations involving the dual nationality bar.

Finally, the Department announced that it will release an updated ESTA application in late February 2016 to cover exceptions for diplomatic and military travel as provided by the new law. These exceptions in the law provide relief from the travel-related bar (and not the dual national bar) for individuals who can demonstrate that travel to one of the four specified countries was to either perform military services as a member of a VWP country’s military, or to perform duties as a full-time employee of a VWP program country’s government.

Based on the guidance released by the State Department, business travelers who fall within the two general categories barring VWP travel should plan to obtain an appropriate visa. Individuals who traveled to Iraq after March 1, 2011, for a legitimate business purpose may consider seeking a waiver based upon the Department’s guidance. Individuals who traveled to Iran for a legitimate business purpose following the finalization of the Joint Comprehensive Plan of Action (Iran Nuclear Agreement; July 14, 2015), may also be eligible for a waiver. It is unclear, however, from the Jan. 21 announcement what the process will be for seeking such a waiver. More information may be forthcoming in late January when the Department provides additional guidance relating to the revised ESTA application and accommodation of the exceptions in the law relating to military or government service.

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